Managing Medical Marijuana, Madness and Other Medical Issues in the Workplace

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1 Managing Medical Marijuana, Madness and Other Medical Issues in the Workplace Procopio s Annual Labor and Employment Seminar Wendy L. Tucker, Senior Counsel

2 One of the Most Challenging Areas in HR Today Many overlapping laws with different requirements Frequent changes to the law Many affirmative, detailed employer obligations Employees use as a defensive measure in response to attempts to discipline Can be a lengthy process to resolve

3 Laws Applicable To Employees With Medical Conditions and Disabilities California Pregnancy Disability Leave (PDL) Federal Family and Medical Leave (FMLA) California Family Rights Act (CFRA) California Workers Compensation Act California Drug Rehabilitation Leave Federal Americans with Disabilities Act (ADA) California Fair Employment and Housing Act (FEHA)

4 Potential Liability For: Interference with FMLA/CFRA/PDL leave Failure To Engage In Interactive Process Failure To Provide Reasonable Accommodation Disability Discrimination, Harassment or Retaliation under FEHA, Title VII or ADA Wrongful Termination In Violation of Public Policy Violations of the California Labor Code Failure to Maintain Discrimination Free Workplace Invasion of Privacy/Statutory remedies

5 Think About These Laws When Dealing With: Employee s Medical Conditions physical, mental or emotional Medical Conditions of Employee s Family Member Employee s Disability physical, mental or emotional Employee s Perceived Disability Employee s Requests For Medical Leave Comments/Discussion/Posts About Employee Medical Issues

6 Be Proactive Set Up Process and a Point Person For Handling Requests For Leaves and Disability Issues Provide Required Notices Don t Wait For the Employee To Come To You on Accommodation Issues Err on the Side of Being Too Generous

7 Common Mistakes Failing to Engage In the Interactive Process Failing To Provide Required Notices Failing To Document The File Terminating on Expiration of Statutory Leave Jumping The Gun PATIENCE IS KEY!!

8 Pregnancy Disability Leave Act Applies to all employers with 5 or more employees No eligibility requirements for employees other than being disabled by pregnancy, childbirth or related condition Can cover prenatal visits, intermittent leave, reduced work schedule, pregnancy, childbirth or related medical conditions, including postpartum depression Law now protects perceived as well as actual pregnancy-related conditions

9 Pregnancy Disability Leave Act Entitles employee to 4 months of unpaid leave or transfer to another position with right to reinstatement 4 months means the number of days or hours an employee would normally work within 4 months A full-time employee who works 5 8-hour days a week would be entitled to 88 days of leave entitlement, based on an average of 22 working days per month for 4 months Leave entitlement is per pregnancy, not per year

10 Requesting PDL Minimum Requirement verbal request for leave/transfer, stating anticipated timing and anticipated duration of leave If need for leave is foreseeable, employee must provide at least 30 days notice If not foreseeable, employee must notify as soon as possible Employee must consult with employer and make a reasonable effort to schedule planned medical treatment to minimize disruptions

11 Employer s Response to Request for PDL Employer must respond to a request as soon as possible, but no later than 10 days after receiving the request Response must include: Amount of leave available Any benefits available during PDL Any requirements for payment by the employee for benefits Required use of any paid time off Any requirements for medical certification for leave or for employee s return to work

12 FMLA/CFRA Application and Eligibility Applies to Employers With 50+ employees Not all employees are eligible for FMLA and CFRA To be eligible, an employee must have: Worked 12 months with employer (can be non-consecutive) Worked at a worksite where 50+ employees are employed within 75 miles Worked 1250 hours in the 12 month period preceding the first day of leave Except in cases of use of PDL and CFRA for baby-bonding time

13 FMLA/CFRA Benefits 12 weeks unpaid leave per year for serious health condition of the employee, spouse, registered domestic partner, parent or child or baby bonding. Pregnancy is not covered by CFRA CFRA and PDL can equal 7 months of unpaid leave Right to return to same or comparable job with equivalent pay, benefits, and other employment terms and conditions. Employers must maintain ALL group benefits being provided to the employees.

14 FMLA/CFRA Benefits No greater right to reinstatement than if employee had been continuously employed rather than on leave. Employee can be required to use accrued paid sick leave for employee s own serious health condition Employee may use accrued vacation leave Employer cannot require Employee to use paid leave if it would interfere with SDI

15 FMLA/CFRA Procedural Requirements Employee must provide certification within 15 days of any request, unless it is not practicable to do so. Employer may require recertification from the health care provider if additional leave is required.

16 FMLA/CFRA Procedural Requirements If leave is for Employee s serious health condition, the employee must provide a certification from the health care provider stating: Date of commencement of the serious health condition; Probable duration of the condition; and Inability of the employee to work at all or perform any one or more of the essential functions of his/her position because of the serious health condition. If the leave is needed for to care for a sick child, spouse, or parent, the Employee must provide for the first two above, plus: Estimated amount of time for care by the health care provider Confirmation that the serious health condition warrants the participation of the employee

17 FMLA/CFRA Requests for Leave If an employee asks for paid vacation or sick leave, employer cannot ask if purpose is an FMLA/CFRA qualifying reason If request is denied and employee then states that leave is for FMLA/CFRA purpose, employer can inquire further It is employer s responsibility to designate leave as FMLA/CFRA leave Employer must notify employee of eligibility for leave within 5 business days of request Employer can designate retroactively in some circumstances

18 Return to Work: Fitness for Duty Employer may require certification by the employee s health care provider that the employee is fit to return to his or her job. Failure to provide certification by the health care provider of the employee s fitness to return to work may result in denial of reinstatement for the employee until the certificate is obtained.

19 Fitness for Duty Exams By Employer Physican Employer may require independent fitness-for-duty examination upon return from FMLA if: Job related, and Business necessity White v. County of Los Angeles, 225 Cal.App.4 th 690 (2014). Employee may be terminated for refusing to undergo fitness-for-duty examination if inquiry is Job related, and Business necessity Kao v. University of San Francisco, 229 Cal.App.4 th 437 (2014).

20 Workers Compensation Leave Every employer with 1 or more employees is subject Employee injury arises out of and in the course of employment Employer should determine if the employee also is eligible for leave under the FMLA/CFRA so that the leave time may be counted against the employee s 12- week FMLA entitlement Cannot terminate while out on leave for worker s comp injury Once employee is permanent and stationary, must conduct evaluation under ADA

21 Drug Rehabilitation Leave Covers employers with 25 or more employees. Any employee who wishes to voluntarily enter alcohol and/or drug rehabilitation program may be granted a reasonable accommodation. This may include time off without pay and/or an adjusted work schedule, provided that the accommodation does not impose an undue hardship on the employer. Right to return to same job

22 Drug Rehabilitation Leave Does not prevent the employer from refusing to hire, disciplining or discharging an employee who, because of the current use of alcohol or drugs, is unable to perform her duties or cannot perform the duties in a manner which would not endanger her health or safety or the health or safety of others. Adopt Drug/Alcohol Policy Reasonable Suspicion Drug Testing No drug use on the job that impairs job performance Do not ban only illegal drugs

23 ADA/FEHA - Reasonable Accommodations Of A Disability Employers with more than 5 employees are required to reasonably accommodate an individual s disability unless the employer can demonstrate the accommodation would impose an undue hardship Applies to applicants as well as employees 23

24 What is a disability? Disability means: Physical or mental impairment that limits one or more major life activities of an individual; A record of such an impairment; or Being regarded as having such an impairment. Does not include: People who currently use drugs illegally New regulations recommend assuming disability exists 24

25 The Interactive Process: Finding a Reasonable Accommodation Once an employer is aware of the need for an accommodation, the employer is obligated to begin this good-faith, interactive process in a timely manner. Interactive Process: on-going communication between the employer and the applicant/employee with a known disability in an effort to provide reasonable accommodation for employees who, because of their disability, are unable to perform one or more of the essential functions of their job.

26 Essential Job Function is Key Employee s physical presence at or by a specific time may not be an essential job function 2 nd Circuit has ruled that it is not as a matter of law McMillan v. City of New York, 711 F.3d 120 (2 nd Cir. 2013) Make sure your job descriptions are accurate and up to date!

27 How might an employer become aware of the employee s need for an accommodation? Request made by the employee Request made by a third party on behalf of the employee (such as a spouse) Initiated by a manager who becomes aware of the need for an accommodation Request may be as direct as a specific oral or written request, a request for leave, or may be an unassuming mention of a difficulty due to a medical condition Note: normally, the Manager/Supervisors should not contact the employee s physician directly. If clarification is needed, ask the employee to contact their physician.

28 What The Interactive Process Might Look Like Look at the particular job involved. Determine its purpose and essential functions (job description is key) Talk to the individual with the disability to find out his/her specific limitations as they relate to the essential job functions. Identify the barriers and assess how they could be overcome with an accommodation. Identify potential accommodations with the help of the person with the disability.

29 Examples of Reasonable Accommodations Reasonable accommodations may include: Making facilities readily accessible and usable Job restructuring Part-time or modified work schedules Reassignment to a vacant position Modification of equipment/devices Adjustment or modification of examinations, training materials or policies

30 More Examples of Reasonable Accommodations A person who uses a wheelchair may need an accommodation if the office or interview site is not accessible (e.g., ramp) A person with a visual disability may need assistance in filling out an application form (e.g. someone to read and transcribe). An employee whose job requires driving but who loses his/her sight may be re-assigned to a vacant position that does not require driving, if position is available.

31 Selecting the Reasonable Accommodation Consider the preference of the individual with the disability. Select the accommodation that best serves the individual and employer. If there is more than one accommodation that will be effective, employer may choose one that is less expensive or easier to provide. Individual with a disability is not required to accept an accommodation. If accommodation is necessary to enable the individual to perform the job, then the individual will not be considered a qualified individual with a disability.

32 Must an Employer Accommodate: Emotional Instability? Use of prescription drugs on the job that impairs job performance? Inability to Stay On Task? Inability to Follow Through On Tasks? Need For Accompaniment? Need for a guide animal?

33 Undue Hardship Exception Employer need not offer reasonable accommodation where it would be an undue hardship on the employer Burden to establish undue hardship is on employer

34 Undue Hardship Factors essential duties of the position the nature and cost of the accommodation needed the overall financial resources of the particular facility, as well as other facilities owned by the employer the type of operation of the employer the impact the accommodation will have on the operation of the facility

35 Thank You!